EXHIBIT 4.21
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AND CONSENT
This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT AND CONSENT (this "Amendment") is dated as of May 22, 2002, and
entered into by and among XXXXX X. XXXXXXXXX HOLDING COMPANY, INC., a Delaware
corporation ("Holding"), XXXXX X. XXXXXXXXX COMPANY, a Delaware corporation (the
"Borrower"), the banks and other financial institutions signatory hereto that
are parties as Lenders to the Credit Agreement referred to below (the
"Lenders"), and DEUTSCHE BANK TRUST COMPANY AMERICAS (formerly known as Bankers
Trust Company), as agent (in such capacity, the "Agent").
Recitals
Whereas, the Borrower, Holding, the Lenders, the Agent and
Deutsche Bank Securities, Inc., as Lead Arranger and Sole Book Runner, have
entered into that certain Second Amended and Restated Credit Agreement dated as
of April 12, 2002 (the "Credit Agreement"; capitalized terms used in this
Amendment without definition shall have the meanings given such terms in the
Credit Agreement); and
Whereas, under the Credit Agreement, the Expiration Date is
automatically extended if the maturity date of the Exchange Notes or the Special
Term Loan Agreement is extended; and
Whereas, in lieu of extending the Exchange Notes and/or the
Special Term Loan Agreement, the Borrower desires to refinance the Indebtedness
outstanding under the Special Term Loan Agreement and the Exchange Notes, by
issuing senior secured notes (the "Senior Secured Notes") under an indenture
(the " Senior Secured Note Indenture") to be secured by the same assets of the
Borrower that currently secure the Special Term Loan Agreement and has requested
that the Lenders consent to the issuance of the Senior Secured Notes, and its
execution and delivery of the Senior Secured Note Indenture and the documents
granting Liens (such documents, together with the Senior Secured Notes and the
Senior Secured Note Indenture, the "Senior Secured Note Documents"); and
Whereas, the Borrower has further requested that the Lenders
agree, subject to the conditions and on the terms set forth in this Amendment,
to permit a Dividend from the proceeds of the Senior Secured Notes to pay
interest on the Holding Notes, redeem or repurchase shares of Holding's capital
stock and to amend certain provisions of the Credit Agreement; and
Whereas, the Lenders are willing to consent to the issuance of
the Senior Secured Notes and to the payment of the Dividend and agree to amend
the Credit Agreement, subject to the conditions and on the terms set forth
herein;
Now Therefore, in consideration of the premises and the mutual
agreements set forth herein, the Borrower, Holding, the Lenders and the Agent
agree as follows:
1. CONSENT TO SENIOR SECURED NOTES AND DIVIDEND. By execution
of this Amendment, each Lender hereby consents to (a) the Borrower and Holding
incurring Indebtedness in the aggregate principal amount of up to $250,000,000
to be evidenced by the Senior Secured Notes substantially on the terms described
on Schedule I and entering into the Senior Secured Note Documents, (b) the grant
by Borrower of Liens on the collateral securing the Special Term Loan to secure
the Senior Secured Notes; provided that the trustee under the Senior Secured
Note Indenture enters into an intercreditor agreement with the Agent on
substantially the same terms as set forth in the Intercreditor Agreement, (c) to
the use of the proceeds of the Senior Secured Notes to prepay, repay or redeem
the Exchange Notes and the Special Term Loan in full, and (d) as long as no
Default shall exist or be created by the payment, the payment of a Dividend by
Borrower to Holding of up to $25,000,000 which may be used to pay accrued
interest and/or principal on the Holding Notes and/or to redeem or repurchase
shares of Holding's capital stock, all notwithstanding the restrictions
contained in Sections 8.2, 8.3, 8.6 and 8.11 of the Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. Subject to the conditions
and on the terms set forth in this Amendment and in reliance on the
representations and warranties of the Borrower and Holding set forth in this
Amendment, the Credit Agreement is hereby amended as follows:
2.1 Amendments to Definitions. Section 1.1 of the
Credit Agreement is amended as follows:
(a) The definition of "BTCo" is deleted in its
entirety, and a new definition of "DBTCo" is inserted in proper
alphabetical order, to read as follows:
"DBTCo." shall mean Deutsche Bank Trust Company
Americas, in its individual capacity and its successors and assigns.
and all references in the Credit Agreement to "BTCo" shall be replaced
with "DBTCo".
(b) All references to "New Senior Note Documents" or
"Special Term Loan Documents" in the definitions of "Change of Control"
and "Fixed Charge Coverage Ratio" shall be deleted and "Senior Secured
Note Documents" inserted in their place.
(c) The definition of "Expiration Date" is deleted in
its entirety and replaced with the following:
"Expiration Date" shall mean the earlier of (i)
April 7, 2006 and (ii) the date one month prior to the maturity date of
the Holding Notes.
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(d) The definition of "Intercreditor Agreement" is
deleted in its entirety and replaced with the following:
"Intercreditor Agreement" shall mean the
Intercreditor Agreement dated as of March 24, 1998 by and among Fleet
National Bank, in its capacity as the administrative agent for itself
and any other lenders from time to time party to the Special Term Loan
Agreement and the Agent, or, at any time after the issuance of the
Senior Secured Notes, the Intercreditor Agreement by and between the
trustee under the Senior Secured Note Indenture and the Agent.
(e) The following new definitions are inserted in
proper alphabetical order:
"First Amendment" shall mean the First Amendment to
Second Amended and Restated Credit Agreement dated as of May ____, 2002
by and among Holding, the Borrower, the Lenders and the Agent.
"First Amendment Effective Date" shall mean the date
on which the First Amendment became effective in accordance with its
terms.
"Senior Secured Note Documents" shall mean and
include each of the documents and other agreements entered into by the
Borrower and Holding (including without limitation the Senior Secured
Note Indenture) relating to the issuance by Borrower of the Senior
Secured Notes, as in effect on the First Amendment Effective Date and
as the same may be entered into, modified, supplemented or amended from
time to time to the extent permitted pursuant to the terms hereof and
thereof.
"Senior Secured Note Indenture" shall mean the
Indenture, dated on or about the First Amendment Effective Date,
entered into by and between the Borrower and Bank of New York, as
trustee thereunder, as in effect on the First Amendment Effective Date
and as the same may be modified, amended or supplemented from time to
time to the extent permitted in accordance with the terms of this
Agreement and such Indenture.
"Senior Secured Notes" shall mean the Borrower's
[_____%] Senior Notes due in 2012, as in effect on the First Amendment
Effective Date and the "exchange notes" on substantially the same terms
issued in exchange therefore in accordance with the terms of the Senior
Secured Note Indenture, as the same may be modified, amended or
supplemented from time to time to the extent permitted in accordance
with the terms of this Agreement and the Senior Secured Note Indenture.
2.2 Amendment to Section 2.6(b). Section 2.6(b) is
amended to delete the reference to the "Special Term Loan Agreement" and to
replace it with "Senior Secured Note Documents."
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2.3 Amendment to Section 6.21. Section 6.21 of the
Credit Agreement is amended to delete the references to "New Senior Note
Documents" and the "Special Term Loan Agreement" and replace them with the
"Senior Secured Note Documents."
2.4 Amendment to Section 8.2 (Liens). Clause (o) of
Section 8.2 of the Credit Agreement is deleted in its entirety and replaced with
the following:
"(o) Liens created by or pursuant to the Senior
Secured Note Documents encumbering only the assets of the Borrower described on
Schedule B of the Intercreditor Agreement, and which do not encumber the
Collateral."
2.5 Amendments to Section 8.3(Indebtedness). Section
8.3 of the Credit Agreement is amended to (i) delete clause (k) and replace it
with the following:
"(k) Indebtedness under Interest Rate Agreements
relating to the Obligations and the "Obligations" defined in the Special Term
Loan Agreement (whether or not such "Obligations" are then outstanding);
provided that (i) such Interest Rate Agreements entered into by the Borrower are
on terms satisfactory to the Agent and (ii) the outstanding exposure in
connection therewith shall not exceed $8,000,000; and"
and (ii) add the following new clause (l), and to renumber clause (l) as clause
(m):
"(m) Indebtedness evidenced by the Senior Secured
Notes in an aggregate outstanding principal amount not to exceed $250,000,000."
2.6 Amendment to Section 8.5 (Investments). Clause
(m) of Section 8.5 of the Credit Agreement is deleted in its entirety and
replaced with the following:
"(m) any Investments in addition to those
contemplated by the foregoing clauses (a) through (l); provided that
all Investments made pursuant to this clause (m) shall be permitted by
the Senior Secured Note Documents and shall not exceed $10,000,000 at
any time outstanding."
2.7 Amendment to Section 8.6 (Dividends, etc.).
Clause (y) of subsection 8.6(b)(iv)(C) of the Credit Agreement is deleted in its
entirety and replaced with the following:
"(y) the Borrower would be permitted to make a
Restricted Payment under, and as defined in, the Senior Secured Note
Indenture in the amount of such Dividend, provided that the amount of
any Dividend paid pursuant to this clause (b)(iv)(C) shall not exceed
the Available Amount in effect immediately prior to the payment of such
Dividend."
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2.8 Amendment to Section 8.11 (Limitation on
Voluntary Payments, etc.). Subsection 8.11(a) is deleted in its entirety and
replaced with the following:
"a) the Borrower will not, and will not permit any of
its Subsidiaries to: (i) make (or give any notice in respect of) any
voluntary or optional payment or prepayment of principal on or
voluntary or optional redemption of or acquisition for value of
(including, without limitation, by way of depositing with the trustee
with respect thereto or any other Person money or securities before due
for the purpose of paying when due), exchange, purchase, redeem or
acquire for value (whether as a result of a Change of Control, the
consummation of asset sales or otherwise) any Existing Indebtedness
(except as otherwise provided in Section 8.11(b)) or the Indebtedness
described in Section 8.3(f) (provided that the proceeds from
dispositions of assets of the Borrower and its Subsidiaries (including
casualty and condemnation proceeds) may be used to prepay the Senior
Secured Notes to the extent required by the Senior Secured Note
Documents), (ii) amend or modify, or permit the amendment or
modification of, any provision of (x) any such Indebtedness (other than
Indebtedness incurred pursuant to the Senior Secured Notes or the
Senior Secured Note Documents), (y) the Senior Secured Note Documents,
the effect of which would be to change any of the covenants or defaults
thereunder, shorten the weighted average life of the Senior Secured
Notes, or allow the trustee under the Senior Secured Note Indenture or
the Holders of the Senior Secured Notes to obtain or create Liens in
assets of the Borrower other than real property, plant and equipment or
(z) any provision of its Certificate of Incorporation or By Laws
relating to any preferred or preference stock or the Shareholders'
Agreement (without the consent of the Agent) or (iii) issue any
preferred or preference stock."
2.9 Amendment to Section 9.1(d). Section 9.1(d) of
the Credit Agreement is amended to delete the references to the "New Senior Note
Documents" and the "Special Term Loan Documents" and to replace them with the
"Senior Secured Note Documents".
3. REPRESENTATIONS AND WARRANTIES OF THE BORROWER AND
HOLDING. In order to induce the Lenders and the Agent to enter into this
Amendment, the Borrower and Holding represent and warrant to each Lender and the
Agent that the following statements are true, correct and complete on the date
hereof and will be true, correct and complete on the effective date of this
Amendment:
3.1 Power and Authority. Each of the Credit Parties
has all corporate power and authority to enter into this Amendment and the
Senior Secured Note Documents and to carry out the transactions contemplated by,
and to perform its obligations under or in respect of, this Amendment, the
Credit Agreement as amended hereby and the Senior Secured Note Documents.
3.2 Corporate Action. The execution and delivery of
this Amendment and, as of the effective date of this Amendment, the Senior
Secured Note Documents and the performance of the obligations of each Credit
Party under or in respect thereof and of the Credit
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Agreement as amended hereby have been duly authorized by all necessary corporate
action on the part of each of the Credit Parties.
3.3 No Conflict or Violation or Required Consent or
Approval. The execution and delivery of this Amendment and the Senior Secured
Note Documents and the performance of the obligations of each Credit Party under
or in respect of this Amendment, the Credit Agreement as amended hereby and the
Senior Secured Note Documents do not and will not conflict with or violate (a)
any provision of the articles or certificate of incorporation or bylaws or other
governing documents of any Credit Party, (b) any Requirement of Law, (c) any
order, judgment or decree of any court or other governmental agency binding on
any Credit Party or any of its Subsidiaries, or (d) any indenture, agreement or
instrument to which any Credit Party or any of its Subsidiaries is a party or by
which any Credit Party or any of its Subsidiaries, or any property of any of
them, is bound, and do not and will not require any consent or approval of any
Person.
3.4 Execution, Delivery and Enforceability. This
Amendment, the Senior Secured Note Documents and the Credit Agreement as amended
hereby have been duly executed and delivered by each Credit Party which is a
party thereto and are the legal, valid and binding obligations of such Credit
Party, enforceable in accordance with their terms, except as enforceability may
be affected by applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws of general application relating to or affecting the rights of
creditors generally.
3.5 No Default or Event of Default. No event has
occurred and is continuing or will result from the execution and delivery of
this Amendment or the issuance of the Senior Secured Notes that would constitute
a Default or an Event of Default.
3.6 No Material Adverse Effect. No change or
development which has had or is reasonably expected to have a Material Adverse
Effect has occurred and is continuing.
3.7 Representations and Warranties. Each of the
representations and warranties contained in the Credit Documents is and will be
true and correct in all material respects on and as of the date hereof and as of
the effective date of this Amendment, except to the extent that such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects as of such
earlier date.
4. INTERCREDITOR AGREEMENT. By execution of this Amendment,
each Lender hereby authorizes the Agent to enter into an Intercreditor Agreement
with the trustee under the Senior Secured Note Indenture, containing
substantially the same terms as the Intercreditor Agreement with respect to the
Special Term Loan Agreement.
5. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. This
Amendment shall be effective only if and when signed by, and when counterparts
hereof shall have been delivered to the Agent (by hand delivery, mail or
telecopy) by, the Borrower, Holdings and Required Lenders and only if and when
each of the following conditions is satisfied:.
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5.1 No Default or Event of Default; Accuracy of
Representations and Warranties. No Default or Event of Default shall exist and
each of the representations and warranties made by the Credit Parties herein and
in or pursuant to the Credit Documents shall be true and correct in all material
respects as if made on and as of the date on which this Amendment becomes
effective (except that any such representation or warranty that is expressly
stated as being made only as of a specified earlier date shall be true and
correct as of such earlier date).
5.2 Senior Secured Note Documents. The Borrower shall
have entered into the Senior Secured Note Documents, and issued the Senior
Secured Notes, with terms no less favorable to the Borrower than those set forth
on Schedule I hereto.
5.3 Intercreditor Agreement. The Agent and the
Trustee under the Senior Secured Note Indenture shall have executed and
delivered the Intercreditor Agreement, on substantially the same terms as the
Intercreditor Agreement in effect with respect to the Special Term Loan
Agreement.
5.4 Fees. The Borrower shall have paid to the Agent
(a) the Extension Fee, for the ratable benefit of the Lenders, and (b) a consent
fee in the amount of 0.125 % of the Commitment of each Lender which has executed
and delivered this Amendment, for the benefit solely of such Lenders, and each
of which fees shall be fully earned and non-refundable on the First Amendment
Effective Date.
5.5 Opinion of Counsel. If required by the Agent, the
Borrower shall have delivered to the Agent opinion(s) of counsel in form and
substance satisfactory to Agent and its counsel.
5.6 Expense Reimbursements. The Borrower shall have
paid all expense reimbursements due to the Agent pursuant to Section 11.10 of
the Credit Agreement.
6. EFFECT OF THIS AMENDMENT. From and after the date on which
this Amendment becomes effective, all references in the Credit Documents to the
Credit Agreement shall mean the Credit Agreement as amended hereby. Except as
expressly amended hereby or waived herein, the Credit Agreement and the other
Credit Documents, including the Liens granted thereunder, shall remain in full
force and effect, and are hereby ratified and confirmed.
7. APPLICABLE LAW. THE VALIDITY, INTERPRETATIONS AND
ENFORCEMENT OF THIS AMENDMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION
WITH THIS AMENDMENT, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE,
SHALL BE GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAWS
PROVISIONS OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)
AND DECISIONS OF THE STATE OF NEW YORK.
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8. COMPLETE AGREEMENT. This Amendment sets forth the complete
agreement of the parties in respect of any amendment to any of the provisions of
any Credit Document or any waiver thereof.
9. CATCHLINES AND COUNTERPARTS. The catchlines and captions
herein are intended solely for convenience of reference and shall not be used to
interpret or construe the provisions hereof. This Amendment may be executed by
one or more of the parties to this Amendment on any number of separate
counterparts (including by telecopy), all of which taken together shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by a duly authorized officer as of the date first
above written.
XXXXX X. XXXXXXXXX HOLDING
COMPANY, INC
By:____________________________________
Name:______________________________
Title:_____________________________
XXXXX X. XXXXXXXXX COMPANY.
By:____________________________________
Name:______________________________
Title:_____________________________
S-1
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
as Agent
By:____________________________________
Name:______________________________
Title:_____________________________
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
as a Lender
By:____________________________________
Name:______________________________
Title:_____________________________
S-2
THE CIT GROUP/BUSINESS CREDIT, INC.
as a Lender
By:____________________________________
Name:______________________________
Title:_____________________________
S-3
CONGRESS FINANCIAL CORPORATION
as a Lender
By:____________________________________
Name:______________________________
Title:_____________________________
S-4
FLEET CAPITAL CORPORATION,
as a Lender
By:____________________________________
Name:______________________________
Title:_____________________________
S-5
FOOTHILL CAPITAL CORPORATION,
as a Lender
By:____________________________________
Name:______________________________
Title:_____________________________
S-6
GMAC COMMERCIAL CREDIT, LLC,
as a Lender
By:____________________________________
Name:______________________________
Title:_____________________________
S-7
LA SALLE NATIONAL BANK,
as a Lender
By:____________________________________
Name:______________________________
Title:_____________________________
S-8
MANUFACTURERS BANK,
as a Lender
By:____________________________________
Name:______________________________
Title:_____________________________
S-9
THE PROVIDENT BANK,
as a Lender
By:____________________________________
Name:______________________________
Title:_____________________________
S-10
TERMS OF SENIOR SECURED NOTES
Amount: Not to exceed $250,000,000
Maturity: 10 years
Amortization: None prior to maturity
Mandatory
Prepayments: (i) with proceeds of the sale of (or casualty or
condemnation with respect to) Collateral securing the
Senior Secured Notes (with certain exceptions); (ii)
with proceeds of the sale of assets not securing the
Senior Secured Notes to the extent such proceeds are
not used to (x) reinvest in additional capital
expenditures, (y) acquire additional properties or
assets related to the Company's business (or make
investments in entities which shall become Restricted
Subsidiaries) or (z) repay, repurchase or redeem
senior debt (including permanent reductions of the
Credit Facility) and (iii) in the event of a Change
of Control
Voluntary
Prepayments: Non-call for 5 years. Prepayable thereafter at
premiums which decline on an annual basis
Up to 35% of the Offering will be prepayable at a
premium during the first three years after the Issue
date with the proceeds of a public equity offering
Maintenance
Covenants: None
Incurrence
Covenants: substantially the same as the New Senior Note
Indenture
Collateral: Substantially the same as the collateral securing the
Special Term Loan Agreement, including Equipment and
motor vehicles and any general intangibles relating
thereto (except intellectual property); certain real
estate owned by the Borrower and all rents, issues
and profits therefrom, a collateral account held by
the trustee for only proceeds of other collateral
described herein and any investments thereof, and
books and records relating to the foregoing.
